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ANALYSIS OF THE DEFENDANTS REPLY BRIEF

SUPPORTING THEIR MOTION FOR DISMISSAL



The overriding theme of the Defendants defending the current
enforcement of the Talent Agencies Act is that it has stood almost without
change for decades, and precedent after precedent reaffirms its validity.
This is in direct contrast to the Plaintiffs overriding theme; that to
discern whether the Act has been enforced aligned or misaligned to law, the
Court must look at whether the precedents should be ignored because they
follow the CA Labor Commissioners wrongful interpretation of the written
statutes.
The Defendants cite four reasons why the suit should be dismissed:
(1) Violations of the Talent Agency Act (Act or TAA) can have civil
consequences even if the statute lacks criminal or civil penalties.

Just the idea of this is contrary to the fundamental need for notice:
in order for a consequence to be implied from a statute there must
be greater justification for its inclusion than a consistency or compatibility
with the act from which it is implied. A necessary implication within the
meaning of the law is one that is so strong in its probability that the contrary
thereof cannot reasonably be supposed. Grubb & Ellis Co. v. Bello, 19 Cal.
App. 4th 231 (1993).
"Elementary notions of fairness enshrined in this Court's
constitutional jurisprudence dictate that a person receive fair notice not only
of the conduct that will subject him to punishment but also of the severity of
the penalty that a State may impose." (BMW of America v. Gore (1995) 517
U.S. 559, 574.)
"Engrained in our concept of due process is the requirement of notice.
Notice is sometimes essential so that the citizen has the chance to defend
charges. Notice is required before property interests are disturbed, before
assessments are made, before penalties are assessed." (Wolff v. Fox (1977)
68 Cal. App. 3d 280; Lambert v. CA. (1957) 355. U.S. 225, 228.)
The Defendants cite 2001 and 2008 precedents to argue that despite
the Plaintiffs protestations, the TAA is remedial. But they conveniently
omit that both those cases are founded upon Buchwald v. Katz, 8 Cal.3d 493
(1972), a case decided when the Act had a penalty provision. That provision
was removed temporarily in 1982 and permanently through codification in
1986, and theres been no penalty provision in the Act ever since. (See
Marathon v. Blasi 42 Cal. 4
th
974, 985(2008); See Complaint, pg. 5, ln. 1
pg. 10, ln. 1 for legislative history.)
Without a remedy, the TAA cannot be remedial: California prohibits
administrative agencies from creating a remedy which the Legislature
withheld. Dyna-Med, Inc. v. Fair Employment & Housing Comm., 43 Cal.
3d at 1385-1388 (1987).
Similarly, as the Plaintiff predicted in their Answer brief, the
Defendants offer no legislative or material evidence to support the quoted
dicta, the clear object of the Act is prevent improper persons from
becoming artists managers Every other state occupational scheme
demands certification of education, apprenticeship and/or accomplishment.
While the TAA has several statutes regulating an agents conduct,
relationship with their client and record keeping, the TAA as written is
completely silent as to qualifications, certifications or limitations of past
indiscretions that would forfeit ones right to obtain a talent agency license.
Likewise, past requiring two affidavits from two people stating they know
[the applicant] to be of good moral character (DLSE Affidavits of Character
for Application for a Talent Agency License) and attesting as to whether
there is a history of found criminality (without statement of whether that is a
disqualification), there is no demand of any proof of qualification relevant to
holding money in trust for clients or any other material issue. It is impossible
to reconcile this lack of discernment to a finding that the Act in any way
efforts to qualify applicants who request talent agent licensure.

(2) The opposition fails to show how the Governor or Attorney General
is directly involved in the enforcement of the challenged statute, so it
does not overcome their sovereign immunity.

The Federal Rules Of Civil Procedure require plaintiffs arguing the
constitutionality of a state statute to name the states Governor and Attorney
General as parties. If it is so plainly ingrained into our system of law that the
Governor and Attorney General are to serve as defendants to such actions, it
is not understandable why the Defendants are claiming such actions are
improper.

3. The opposition ignores the fact that the TAA is enforced by
private parties, in private disputes, where the Commissioner acts
solely as a neutral adjudicator. Hence, there is no live controversy
between plaintiff and the Commissioner.

The Plaintiffs foundational argument is that the Labor Commission
wrongly ensnares personal managers into controversies and then punishes
them for violating laws that do not exist.
The defendants argue that because the act is silent as to remedy, it
somehow, without reference in the Act itself, defaults the remedy to Civil
Code 1599, which is the doctrine of Severability, where legal parts of a
contract can remain in affect while the illegal ones would be voided. It is the
very embodiment of unconstitutionally vague: that a reasonable person
wanting to know that the penalty of a statutory scheme in the Labor Code
would somehow know, without direction, to look to the Civil Code for the
notice of penalty. It is such an obscure reach, that it had never been
mentioned by any court or by the Labor Commission in any of the previous
four decades of rulings, and only in issue because of a personal manager in
Marathon questioning why a finding of a single violation in a long term
relationship should be enough to void the benefit of years of labor. It is
patently absurd to accept this labyrinth to meet the constitutional bar of
clarity of notice. Or to believe that somehow the Legislature was inferring
the use of Civil Code 1599 as a replacement remedy when they repealed
the criminal penalty in 1982. California law bars attorneys from forwarding
defenses they know are subterfuge and without merit (except when they are
representing someone accused of a criminal act); it is heinous that the
arguments of an attorney in the Attorney Generals office is making such
claims to defend indefensible enforcements.
Another foundational part of the Plaintiffs argument is that the TAA
should be enforced similarly to the other occupational schemes that do not
specifically prohibit a non-licensee from engaging in a defined activity of a
regulated profession. The Defendants make no attempt to skewer this
inarguable argument, leaving the Court to somehow on its own explain why
one can lawfully do accounting work or maintain outdoor areas without
violating the Accountancy or Landscape Architects Acts, but with mirroring
language one cannot lawfully procure employment for an artist. Relatedly,
the Defendants do not effort to explain why non-licensees can lawfully
engage in two of the three defined activities of a talent agent, but not the
third, despite no stated distinction anywhere in the statutory scheme.
Perhaps most importantly, the Defendants do not explain how the
forfeiture of ones labor is a constitutional and not criminal penalty. Per the
13
th
Amendment, the only constitutional forfeiture of labor is when has been
lawfully convicted of a criminal act, and the TAA specifically states (
1700.44(b)) that no violation can be considered criminal. Yes, BPC 7031
states that an unlicensed contractor has no right to contract and therefore can
lose the right to be paid for their labor in a civil dispute; but several
provisions in BPC 7028 clearly state that engaging in contractors activities
without a license is a misdemeanor a criminal offense.
Finally, the Defendants argue that the Plaintiff inaccurately
characterizes TAA determinations as arbitrary and often contrary, and that
the Plaintiffs claims must be rejected because no citation or elaboration was
offered.
Again, this is disingenuous. The Defendants know that at this stage, a
court is to accept such claims as true, and rule only whether if true there
would be viable rationale for a ruling in the Plaintiffs favor. But for
edification, consider these contrary findings
In Gittleman v Karolat, TAC 24-02, the Labor Commissioner ruled
that, A talent agency license is not required for the procurement of a guest
appearance on a talk show provided the appearance does not involve the
rendition of artistic services. (Id., pg. 27.)
But in Blasi v. Marathon Entertainment, TAC 15-03, a determination
made the same month, MEI was found to have violated the Act by helping
Rosa Blasi procure an appearance on Politically Incorrect, where she
rendered no artistic services. (Id., pg. 21.)
In Wesley Snipes v. Delores Robinson (TAC 36-96), the
determination states that, The requirements of the [Safe Harbor] statute
cannot be construed to call for a game of Mother May I? every time an
artist manager takes some action during a long term relationship To find
otherwise would be to ignore the realities of the day to day life in the
[entertainment] industry.
But in Tool v. Lamkin Management (TAC-35-01), the Labor
Commission determined that the personal manager had violated the
unlicensed procurement statute and not acted inside the Safe Harbor because
the manager had called the William Morris Agency about an opportunity,
the agency had not called the management firm.
In Parker Posey v. Lila Richardson (TAC 7-02), the Labor
Commission disgorged the contractual rights of an attorney for procuring
without a talent agency license.
But in Jewel v. Inga Vainshtein (TAC 21-00), the Labor Commission
disgorged the contractual rights of the personal manager but left the
contractual rights of the attorney untouched because the artist chose only to
initiate a controversy to avoid paying the personal manager.
In Macy Gray v. Lori Leve Management (TAC 18-00), the managers
right to contract was affirmed; the Labor Commission finding that the
showcase Leve, put together for Gray was to procure a recording contract,
and indeed Epic Records did sign Gray as a direct result of the showcase
and Gray did not commission the engagement.
But in Park v. Deftones (TAC 9-97), the manager was found to have
violated the Act for organizing 84 similar showcases for his clients until on
the 84
th
effort, the band was signed to Maverick Records. There is nowhere
written in the Act, If at first you dont succeed, dont try again, but this
differentiation penalizes the representative for his persistence instead of
honoring his belief that his clients, who went on to have significant success,
had that potential and he was hell-bent on showcasing until he could find
other believers.
The Defendants do not offer reference to a bright line of what only
licensees can do, nor do they comment on the cites where even the Labor
Commissioner rues the lack of such a demarcation between lawful and
unlawful. They say that procure employment is commonly understood, but
they do not state whether creating marketing materials that lead to
procurement is lawful or unlawful; what can and cannot be said to a casting
director, network executive or producer about a client without being in
violation, or whether accepting an offer is lawful, and if so, can any terms of
that offer be changed without it becoming unlawful. And they make no
claim that helping a client get a party with a third party is in any way a
public concern.
In claiming that Interstate Commerce is not interfered with, the
Defendants ignore Plaintiffs claim that the Act creates an unconstitutional
barrier for personal managers looking to best represent their clients. In Baker
v. Bash, TAC 12-96, a contract was voided because the manager negotiated
an endorsement deal for Anita Baker for a Paris-based concern, and because
the singers booking agent was Associated Booking Corporation (ABC).
ABC was the agency for virtually very major performing artist of color since
Billie Holliday and Louis Armstrong (Armstrong was one of the founding
partners (http://www.associatedbooking.com/ab.html)), but it was based in
New York City. Any manager looking out for his clients best interests
would put Ms. Baker with Associated.
In Robi v. Wolf, TAC 29-00, the personal manager sought out
regional agents to help The Platters get engagements at county and state fairs
across the country because there were no licensed agents in California doing
such work. To stay inside TAA enforcement, Wolf would have had to share
compensation with a licensed agent in California doing nothing but offering
cover from future TAA controversies. That is in inarguable unconstitutional
barrier, and the Defendants make no effort to rebut it.
===
There is never a guarantee of how a judge or jury will rule. However,
the bar for the Defendants motion is high: A 12(b)(6) motion should not be
granted unless it appears beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief. Sutton v.
Utah State School for Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999)
With all of the above, it seems highly unlikely that the Defendants
motion will be successful.